Law Commons^™

Beyond “Life And Liberty”: The Evolving Right To Counsel, John D. King

Scholarly Articles

The majority of Americans, if they have contact with the criminal justice system at all, will experience it through misdemeanor courtrooms. More than ever before, the criminal justice system is used to sort, justify, and reify a separate underclass. And as the system of misdemeanor adjudication continues to be flooded with new cases, the value that is exalted over all others is efficiency. The result is a system that can make it virtually painless to plead guilty (which has always been true for low-level offenses), but that is now overlaid with a new system of increasingly harsh collateral consequences. The …

Drugs, Dignity And Danger: Human Dignity As A Constitutional Constraint To Limit Overcriminalization, Michal Buchhandler-Raphael

Scholarly Articles

This Article proposes a constitutional constraint to limit criminalization of victimless crimes and, particularly, to alleviate the pressures on the criminal justice system emanating from its continuous “war on drugs.” To accomplish this goal, the Article explores the concept of human dignity, a fundamental right yet to be invoked in the context of substantive criminal law. The U.S. Supreme Court’s jurisprudence invokes conflicting accounts of human dignity: liberty as dignity, on the one hand, and communitarian virtue as dignity, on the other. However, the Court has not yet developed a workable mechanism to reconcile these competing concepts in cases where …

Florida V. Jardines: The Wolf At The Castle Door, Timothy C. Macdonnell

Scholarly Articles

The purpose of this article is to examine the controversy regarding the application of the contraband exception to the home and the potential impact of the Florida v. Jardines decision of the U.S. Supreme Court. The article will begin by examining the cases that make up the Supreme Court's contraband exception and some of the Court's precedent regarding the home and warrantless searches. Next, the article will examine the Florida Supreme Court's holding in Jardines and discuss how the Florida court arrived at the conclusion that the canine sniff in that case was a search. This section will compare the …

Where Pardons Are Concerned, Second Best May Not Be So Bad After All: A Response To Chad Flanders, Cara H. Drinan

Scholarly Articles

No abstract provided.

Getting Real About Gideon: The Next Fifty Years Of Enforcing The Right To Counsel, Cara H. Drinan

Scholarly Articles

As we mark the fiftieth anniversary of Gideon, in this Article I argue that we can and should be more realistic in our efforts to enforce the right to counsel. Assuming, as many now do, that five decades of resource-starved indigent defense will likely continue in the future, where are our efforts most effectively deployed in the years to come? I address that question in three parts. Part II briefly acknowledges the entrenched crisis in indigent defense that is as old as the Gideon decision itself. Part III examines the most salient reform efforts of the last fifty years, highlighting …

Searching Cell Phones After Arrest: Exceptions To The Warrant And Probable Cause Requirements, Clifford S. Fishman

Scholarly Articles

Police officers lawfully arrest a suspect, search him, and seize his cell phone. Sometime later, without first getting a search warrant, an officer answers an incoming call, reads an incoming text, or examines the phone’s memory, call log, prior text messages, photographs, or Internet access records. As a result, the police acquire information that leads to additional evidence concerning the arrest crime, or a totally different and unrelated crime. Prior to trial, the defendant moves to suppress the evidence. The prosecutor argues that the officer’s action was justified by exigent circumstances, constituted a lawful search incident to the arrest, or …

Katz On A Hot Tin Roof: Saving The Fourth Amendment From Commercial Conditioning By Reviving Voluntariness In Disclosures To Third Parties, Mary Graw Leary

Scholarly Articles

In a world in which Americans are tracked on the Internet, tracked through their cell phones, tracked through the apps they purchase, and monitored by hundreds of traffic cameras, privacy is quickly becoming nothing more than a quaint vestige of the past.

In a previous article discussing the intersection of technology and the Fourth Amendment, I proposed reframing the issue away from conventional commentary. The Missed Opportunity of United States v. Jones: Commercial Erosion of Fourth Amendment Protection in a Post-Google Earth World, 15 PENN. J. CON. L. 331, 333 (2012). That article posits that society has reached the point …